Thurgood Marshall Steps Down

June 28, 1991

The bronze Thurgood Marshall on Pratt Street may be only eight-and-a-half feet tall, but the historical Thurgood Marshall is a lot taller than that. He is quite likely to go down in history as one of the greatest, most effective lawyers of this century. Much of his reputation will rest on his 24 years as an associate justice of the Supreme Court. To have been one of a small elite who could overcome a president, a majority of Congress and all the state and local lawmakers in the land is by definition to have achieved great influence.

Justice Marshall was the first black Supreme Court justice. He was the first black solicitor general of the United States. He wanted to be the first black student at the University of Maryland Law School, in this, his hometown, but that was before he as a determined lawyer had begun to tear down the Jim Crow laws that forbade it.

He had to go to Howard University instead and soon became the leading lawyer for the NAACP's assault on legally imposed segregation. In 23 years, he won 19 of his 32 cases before the Supreme Court. His legal skill ended white primaries in the South, racial restrictive covenants in real estate and other barriers to equality. He was the lead lawyer -- and the leader -- in the case that formed the basis for ending segregation in every aspect of American society, Brown vs. Board of Education. That was in 1954. Seven years later, John Kennedy named him to a circuit court judgeship. Lyndon Johnson named him solicitor general, then an associate justice of the Supreme Court.

In his earlier years on the court he was usually voting with and writing for the liberal-to-moderate majorities that carried the day. He was on the winning side in landmark cases in the 1970s involving abortion and civil rights.

Then increasingly he, Justice William Brennan and Justice Harry Blackmun were isolated in dissent as the court swung right. He gave every indication of having lost interest in his job. Only the occasional 5-4 "liberal" victories the liberal core was able to produce seemed to keep him on the court. He knew that he would be replaced by a conservative. He often said, "It's a lifetime appointment, and I intend to serve out my term." Last year Justice Brennan resigned. The court's conservative lock was all but assured.

Of course, in a sense Thurgood Marshall is quite a conservative himself. As a crusading attorney and a jurist he believed in constitutional protection of individuals against ruthless majorities -- and in precedent. Fittingly, in his last day on the court Justice Marshall wrote an eloquent dissent invoking both individual liberty and precedent. He chastised the majority for turning its back on its own recent decisions (regarding victim impact statements). "The majority today sends a clear signal that scores of established constitutional liberties are now ripe for reconsideration," he said.

Replacing Justice Marshall poses a challenge for President Bush. He has a right to nominate his own kind of conservative, but he also has an obligation to name someone in the mold of Justice Marshall, someone whose life has been and will be devoted to the law as an instrument of fairness and justice.